1     
GRAND JURY AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Merrill F. Nelson

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to grand juries.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     when a county or district attorney fails to file criminal charges in a case where a law
14     enforcement officer uses deadly force, requires the county or district attorney to
15     release all facts and legal standards that were used to reach the decision to not file
16     criminal charges;
17          ▸     provides that good cause exists to summon a grand jury if the matter concerns
18     alleged public corruption or the alleged use of deadly force by a law enforcement
19     officer;
20          ▸     clarifies that the managing judge may be present while a grand jury is in session;
21          ▸     amends provisions related to the disclosure of grand jury proceedings;
22          ▸     requires the managing judge to order a transcript of the grand jury proceedings be
23     prepared and classified as a public record if the matter concerns the alleged use of
24     deadly force by a law enforcement officer and the grand jury declines to indict the
25     law enforcement officer;
26          ▸     requires the prosecuting attorney to provide a transcript to the defendant if a grand
27     jury indicts the defendant;
28          ▸     prohibits the disclosure of grand jury deliberations, the vote of a grand juror, the
29     identity of a grand juror, and, in certain circumstances, the identity of a witness who
30     appeared before the grand jury;
31          ▸     requires a county or municipality to pay the expenses of a grand jury when a grand
32     jury is summoned at the request of a county attorney, district attorney, or municipal
33     attorney; and
34          ▸     makes technical and conforming changes.
35     Money Appropriated in this Bill:
36          None
37     Other Special Clauses:
38          None
39     Utah Code Sections Affected:
40     AMENDS:
41          76-2-408, as last amended by Laws of Utah 2019, Chapter 395
42          77-10a-1, as enacted by Laws of Utah 1990, Chapter 318
43          77-10a-2, as last amended by Laws of Utah 2018, Chapter 25
44          77-10a-13, as last amended by Laws of Utah 2018, Chapter 281
45          77-10a-20, as last amended by Laws of Utah 1997, Chapter 372
46     ENACTS:
47          77-10a-13.5, Utah Code Annotated 1953
48     

49     Be it enacted by the Legislature of the state of Utah:
50          Section 1. Section 76-2-408 is amended to read:
51          76-2-408. Peace officer use of force -- Investigations.
52          (1) As used in this section:
53          (a) "Dangerous weapon" means a firearm or an object that in the manner of [its] the
54     object's use or intended use is capable of causing death or serious bodily injury to a person.
55          (b) "Deadly force" means a force that creates or is likely to create, or that the person
56     using the force intends to create, a substantial likelihood of death or serious bodily injury to a
57     person.
58          (c) "In custody" means in the legal custody of a state prison, county jail, or other
59     correctional facility, including custody that results from:
60          (i) a detention to secure attendance as a witness in a criminal case;
61          (ii) an arrest for or charging with a crime and committing for trial;
62          (iii) committing for contempt, upon civil process, or by other authority of law; or
63          (iv) sentencing to imprisonment on conviction of a crime.
64          (d) "Investigating agency" means a law enforcement agency, the county or district
65     attorney's office, or an interagency task force composed of officers from multiple law
66     enforcement agencies.
67          (e) "Officer" means the same as the term "law enforcement officer" as that term is
68     defined in Section 53-13-103.
69          (f) "Officer-involved critical incident" means any of the following:
70          (i) an officer's use of deadly force;
71          (ii) an officer's use of a dangerous weapon against a person that causes injury to any
72     person;
73          (iii) death or serious bodily injury to any person, other than the officer, resulting from
74     an officer's:
75          (A) use of a motor vehicle while the officer is on duty; or
76          (B) use of a government vehicle while the officer is off duty;
77          (iv) the death of a person who is in custody, but excluding a death that is the result of
78     disease, natural causes, or conditions that have been medically diagnosed prior to the person's
79     death; or
80          (v) the death of or serious bodily injury to a person not in custody, other than an
81     officer, resulting from an officer's attempt to prevent a person's escape from custody, to make
82     an arrest, or otherwise to gain physical control of a person.
83          (g) "Serious bodily injury" means the same as that term is defined in Section 76-1-601.
84          (2) When an officer-involved critical incident occurs:
85          (a) upon receiving notice of the officer-involved critical incident, the law enforcement
86     agency having jurisdiction where the incident occurred shall, as soon as practical, notify the
87     county or district attorney having jurisdiction where the incident occurred; and
88          (b) the chief executive of the law enforcement agency and the county or district
89     attorney having jurisdiction where the incident occurred shall:
90          (i) jointly designate an investigating agency for the officer-involved critical incident;
91     [and]
92          (ii) designate which agency is the lead investigative agency if the officer-involved
93     critical incident involves multiple investigations[.]; and
94          (iii) if the county or district attorney declines to file criminal charges in a case where an
95     officer uses deadly force, release to the public all facts and legal standards that were used to
96     reach the decision to not file criminal charges.
97          (3) The investigating agency under Subsection (2) may not be the law enforcement
98     agency employing the officer who is alleged to have caused or contributed to the
99     officer-involved critical incident.
100          (4) This section does not preclude the law enforcement agency employing an officer
101     alleged to have caused or contributed to the officer-involved critical incident from conducting
102     an internal administrative investigation.
103          (5) Each law enforcement agency that is part of or administered by the state or any of
104     its political subdivisions shall, by December 31, 2015, adopt and post on its publicly accessible
105     website:
106          (a) the policies and procedures the agency has adopted to select the investigating
107     agency if an officer-involved critical incident occurs in its jurisdiction and one of its officers is
108     alleged to have caused or contributed to the officer-involved incident; and
109          (b) the protocols the agency has adopted to ensure that any investigation of
110     officer-involved incidents occurring in its jurisdiction are conducted professionally,
111     thoroughly, and impartially.
112          Section 2. Section 77-10a-1 is amended to read:
113          77-10a-1. Definitions.
114          As used in this chapter:
115          (1) "Clerk of the court" means:
116          (a) the state court administrator; or [his]
117          (b) the state court administrator's designee.
118          (2) "Deadly force" means the same as that term is defined in Section 76-2-408.
119          (3) "Law enforcement officer" means the same as that term is defined in Section
120     53-10-103.
121          [(2)] (4) "Managing judge" means the supervising judge when [he] the supervising
122     judge retains authority to manage a grand jury, or the district court judge to whom the
123     supervising judge delegates management of a grand jury.
124          [(3)] (5) "Presiding officer" means the presiding officer of the Judicial Council.
125          [(4)] (6) "Subject" means a person whose conduct is within the scope of the grand
126     jury's investigation, and that conduct exposes the person to possible criminal prosecution.
127          [(5)] (7) "Supervising judge" means the district court judge appointed by the presiding
128     officer to supervise the five-judge grand jury panel.
129          [(6)] (8) "Target" means a person regarding whom the attorney for the state, the special
130     prosecutor, or the grand jury has substantial evidence that links that person to the commission
131     of a crime and who could be indicted or charged with that crime.
132          [(7)] (9) "Witness" means a person who appears before the grand jury either voluntarily
133     or pursuant to subpoena for the purpose of providing testimony or evidence for the grand jury's
134     use in discharging [its] the grand jury's responsibilities.
135          Section 3. Section 77-10a-2 is amended to read:
136          77-10a-2. Panel of judges -- Appointment -- Membership -- Ordering of grand
137     jury.
138          (1) (a) The presiding officer [of the Judicial Council] shall appoint a panel of five
139     judges from the district courts of the state to hear in secret all persons claiming to have
140     information that would justify the calling of a grand jury.
141          (b) The presiding officer may appoint senior status district court judges to the panel.
142          (c) The presiding officer shall designate one member of the panel as supervising judge
143     to serve at the pleasure of the presiding officer.
144          (d) The panel has the authority of the district court.
145          [(b)] (2) (a) To ensure geographical diversity on the panel:
146          (i) one judge shall be appointed from the first or second district for a five-year term[,];
147          (ii) one judge shall be appointed from the third district for a four-year term[,];
148          (iii) one judge shall be appointed from the fourth district for a three-year term[,];
149          (iv) one judge shall be appointed from the fifth, sixth, seventh, or eighth districts for a
150     two-year term[,]; and
151          (v) one judge shall be appointed from the third district for a one-year term.
152          (b) Following the first term, all terms on the panel are for five years.
153          [(c)] (3) (a) The panel shall schedule hearings in each judicial district at least once
154     every three years and may meet at any location within the state.
155          (b) Three members of the panel constitute a quorum for the transaction of panel
156     business.
157          (c) The panel shall act by the concurrence of a majority of members present and may
158     act through the supervising judge or managing judge.
159          (d) The schedule for the hearings shall be set by the panel and published by the
160     Administrative Office of the Courts. [Persons who desire to appear before the panel]
161          (e) If a person desires to appear before the panel, the person shall schedule an
162     appointment with the Administrative Office of the Courts at least 10 days in advance.
163          (f) If no appointments are scheduled, the hearing may be canceled. [Persons appearing
164     before the panel]
165          (g) If a person appears before the panel, the person shall be placed under oath and
166     examined by the judges conducting the hearings.
167          (h) Hearsay evidence may be presented at the hearings only under the same provisions
168     and limitations that apply to preliminary hearings.
169          [(2)] (4) (a) If the panel finds good cause to believe a grand jury is necessary, the panel
170     shall make [its] the panel's findings in writing and may order a grand jury to be summoned.
171          (b) The panel may refer a matter to the attorney general, county attorney, district
172     attorney, or city attorney for investigation and prosecution.
173          (c) The referral under Subsection (4)(b) shall contain as much of the information
174     presented to the panel as the panel determines relevant.
175          (d) The attorney general, county attorney, district attorney, or city attorney shall report
176     to the panel the results of any investigation and whether the matter will be prosecuted by a
177     prosecutor's information.
178          (e) The report shall be filed with the panel within 120 days after the referral unless the
179     panel provides for a different amount of time.
180          (f) If the panel is not satisfied with the action of the attorney general, county attorney,
181     district attorney, or city attorney, the panel may order a grand jury to be summoned.
182          [(3) When] (5) (a) If the attorney general, a county attorney, a district attorney, a
183     municipal attorney, or a special prosecutor appointed under Section 77-10a-12 [certifies in
184     writing to the supervising judge that in his judgment] determines that a grand jury is necessary
185     because of criminal activity in the state, the attorney general, county attorney, district attorney,
186     municipal attorney, or special prosecutor shall certify the necessity for a grand jury, in writing,
187     to the supervising judge.
188          (b) If the panel finds that good cause exists for a matter certified under Subsection
189     (5)(a), the panel shall order a grand jury to be summoned [if the panel finds good cause exists].
190          (c) (i) The panel shall find good cause exists when the matter certified under
191     Subsection (5)(a) concerns:
192          (A) alleged public corruption involving an offense under Title 76, Chapter 8, Part 1,
193     Corrupt Practices, or Part 2, Abuse of Office; or
194          (B) the alleged use of deadly force by a law enforcement officer.
195          (ii) For all other matters certified to the panel under Subsection (5)(a), the panel shall
196     determine whether good cause exists in accordance with Subsection (6).
197          [(4)] (6) In determining whether good cause exists under Subsection [(3)] (4) or (5), the
198     panel shall consider, among other factors, whether a grand jury is needed to help maintain
199     public confidence in the impartiality of the criminal justice process.
200          [(5)] (7) A written certification under Subsection [(3)] (5)(a) shall contain a statement
201     that in the prosecutor's [judgement] judgment a grand jury is necessary, but the certification
202     need not contain any information [which] that if disclosed may create a risk of:
203          (a) destruction or tainting of evidence;
204          (b) flight or other conduct by the subject of the investigation to avoid prosecution;
205          (c) damage to a person's reputation or privacy;
206          (d) harm to any person; or
207          (e) a serious impediment to the investigation.
208          [(6)] (8) A written certification under Subsection [(3)] (5)(a) shall be accompanied by a
209     statement of facts in support of the need for a grand jury.
210          [(7)] (9) The supervising judge shall seal any written statement of facts submitted
211     under Subsection [(6)] (8).
212          [(8) The] (10) At the time a grand jury is summoned, the supervising judge may [at the
213     time the grand jury is summoned]:
214          (a) order that [it] the grand jury be drawn from the state at large as provided in this
215     chapter or from any district within the state; and
216          (b) retain authority to supervise the grand jury or delegate the supervision of the grand
217     jury to any judge of any district court within the state.
218          [(9)] (11) If after the certification under Subsection [(3)] (5)(a) the panel does not order
219     the summoning of a grand jury or the grand jury does not return an indictment regarding the
220     subject matter of the certification, the prosecuting attorney may release to the public a copy of
221     the written certification if in the prosecutor's judgment the release does not create a risk as
222     described in Subsection [(5)] (7).
223          Section 4. Section 77-10a-13 is amended to read:
224          77-10a-13. Location -- Who may be present -- Witnesses -- Witnesses who are
225     subjects -- Evidence -- Contempt -- Notice.
226          (1) (a) The managing judge shall designate the place where the grand jury meets.
227          (b) The grand jury may, upon request and with the permission of the managing judge,
228     meet and conduct business any place within the state.
229          (c) Subject to the approval of the managing judge, the grand jury shall determine the
230     times at which [it] the grand jury meets.
231          (2) (a) [Attorneys representing the state, special prosecutors appointed under Section
232     77-10a-12, the witness under examination, interpreters when needed, counsel for a witness, and
233     a court reporter or operator of a recording device to record the proceedings may be present
234     while the grand jury is in session.] The following persons may be present while a grand jury is
235     in session:
236          (i) the managing judge;
237          (ii) any attorney representing the state;
238          (iii) a special prosecutor appointed under Section 77-10a-12;
239          (iv) the witness under examination;
240          (v) if needed, an interpreter;
241          (vi) counsel for the witness;
242          (vii) a court reporter; or
243          (viii) an operator of a recording device to record the proceedings.
244          (b) No person other than the jurors may be present while the grand jury is deliberating.
245          (3) (a) [The attorneys] An attorney representing the state and [the] a special
246     [prosecutors] prosecutor may:
247          (i) subpoena witnesses to appear before the grand jury; and [may]
248          (ii) subpoena evidence in the name of the grand jury without the prior approval or
249     consent of the grand jury or the court. [The jury]
250          (b) A grand jury may request that other witnesses or evidence be subpoenaed.
251          [(b) Subpoenas] (c) A subpoena may be issued in the name of the grand jury to any
252     person located within the state and for any evidence located within the state or as otherwise
253     provided by law.
254          [(c)] (4) (a) Except as provided in Subsection [(3)(d)] (4)(b), a subpoena requiring a
255     minor, who is a victim of a crime, to testify before a grand jury may not be served less than 72
256     hours before the [victim] minor is required to testify.
257          [(d)] (b) A subpoena may be served upon a minor less than 72 hours before the minor
258     is required to testify if the managing judge makes a factual finding that the minor was
259     intentionally concealed to prevent service or that a shorter period is reasonably necessary to
260     prevent:
261          (i) a risk to the minor's safety;
262          (ii) the concealment or removal of the minor from the jurisdiction;
263          (iii) intimidation or coercion of the minor or a family member of the minor; or
264          (iv) undue influence on the minor regarding the minor's testimony.
265          [(e)] (c) The service requirement in Subsection [(3)(c)] (4)(a) may be asserted only by
266     or on behalf of the minor and is not a basis for invalidation of the minor's testimony or any
267     indictment issued by the grand jury.
268          [(f)] (d) The service requirement of Subsection [(3)(d)] (4)(b) may be asserted by a
269     parent or legal guardian of the minor on the minor's behalf.
270          [(g)] (5) If the managing judge finds it necessary to prevent any of the actions
271     enumerated in [Subsections (3)(d)(i) through (iv)] Subsection (4)(b), or to otherwise protect the
272     minor, the judge may appoint a guardian ad litem to receive service on behalf of the minor, to
273     represent the minor, and to protect the interests of the minor.
274          [(h)] (6) If the minor served under Subsection [(3)(d)] (4)(b) has no parent, legal
275     guardian, or guardian ad litem with whom to confer prior to the grand jury hearing, the
276     managing judge shall appoint legal counsel to represent the minor at the hearing.
277          [(i)] (7) (a) For any minor served with a subpoena under this section, [attorneys] an
278     attorney representing the state, or a special [prosecutors] prosecutor appointed under Section
279     77-10a-12, shall interview and prepare the minor in the presence of the minor's parent or legal
280     guardian and [their] the minor's attorney, or a guardian ad litem at least 24 hours prior to the
281     time the minor is required to testify.
282          (b) The provisions of [this subsection] Subsection (7)(a) requiring the presence of the
283     minor's parent or legal guardian do not apply if:
284          (i) the parent or legal guardian is the subject of the grand jury investigation; or
285          (ii) the parent or legal guardian is engaged in frustrating, or conspires with another to
286     frustrate, the protections and purposes of Subsection [(3)(d)] (4)(b).
287          [(j)] (8) The managing judge may enter any order necessary to secure compliance with
288     any subpoena issued in the name of the grand jury.
289          [(4)] (9) (a) Any witness who appears before the grand jury shall be advised, by the
290     attorney for the state or the special prosecutor, of [his] the witness's right to be represented by
291     counsel.
292          (b) A witness who is [also a subject as defined in Section 77-10a-1] a subject shall, at
293     the time of appearance as a witness, be advised:
294          (i) of [his] the witness's right to be represented by counsel;
295          (ii) that [he] the witness is a subject;
296          (iii) that [he] the witness may claim [his] the witness's privilege against
297     self-incrimination; and
298          (iv) of the general scope of the grand jury's investigation.
299          (c) A witness who is [also a target as defined in Section 77-10a-1] a target shall, at the
300     time of appearance as a witness, be advised:
301          (i) of [his] the witness's right to be represented by counsel;
302          (ii) that [he] the witness is a target;
303          (iii) that [he] the witness may claim [his] the witness's privilege against
304     self-incrimination;
305          (iv) that the attorney for the state, the special prosecutor, or the grand jury is in
306     possession of substantial evidence linking [him] the witness to the commission of a crime for
307     which [he] the witness could be charged; and
308          (v) of the general nature of that charge and of the evidence that would support the
309     charge.
310          (d) This Subsection [(4)] (9) does not require the attorney for the state, the special
311     prosecutor, or the grand jury to disclose to any subject or target the names or identities of
312     witnesses, sources of information, or informants, or disclose information in detail or in a
313     fashion that would jeopardize or compromise any ongoing criminal investigation or endanger
314     any person or the community.
315          [(5)] (10) (a) The grand jury shall receive evidence without regard for the formal rules
316     of evidence, except the grand jury may receive hearsay evidence only under the same
317     provisions and limitations that apply to preliminary hearings.
318          (b) (i) Any person, including a witness who has previously testified or produced books,
319     records, documents, or other evidence, may present exculpatory evidence to the attorney
320     representing the state or the special prosecutor and request that [it] the evidence be presented to
321     the grand jury, or request to appear personally before the grand jury to testify or present
322     evidence to that body.
323          (ii) The attorney for the state or the special prosecutor shall forward [the request] a
324     request under Subsection (10)(b)(i) to the grand jury.
325          (c) When the attorney for the state or the special prosecutor is personally aware of
326     substantial and competent evidence negating the guilt of a subject or target that might
327     reasonably be expected to lead the grand jury not to indict, the attorney or special prosecutor
328     shall present or otherwise disclose the evidence to the grand jury before the grand jury is asked
329     to indict that person.
330          [(6)] (11) (a) The managing judge has the contempt power and authority inherent in the
331     court over which the managing judge presides and as provided [by statute] in Title 78B,
332     Chapter 6, Part 3, Contempt.
333          (b) When a witness in any proceeding before or ancillary to any grand jury appearance
334     refuses to comply with an order from the managing judge to testify or provide other
335     information, including any book, paper, document, record, recording, or other material without
336     having a recognized privilege, the attorney for the state or special prosecutor may apply to the
337     managing judge for an order directing the witness to show cause why the witness should not be
338     held in contempt.
339          (c) After submission of the application and a hearing at which the witness is entitled to
340     be represented by counsel, the managing judge may hold the witness in contempt and order that
341     the witness be confined, upon a finding that the refusal was not privileged.
342          (d) A hearing may not be held under this part unless 72 hours' notice is given to the
343     witness who has refused to comply with the order to testify or provide other information,
344     except a witness may be given a shorter notice if the managing judge upon a showing of special
345     need so orders.
346          (e) Any confinement for refusal to comply with an order to testify or produce other
347     information shall continue until the witness is willing to give the testimony or provide the
348     information.
349          (f) A period of confinement may not exceed:
350          (i) the term of the grand jury, including extensions, before which the refusal to comply
351     with the order occurred[. In any event the confinement may not exceed one year.]; and
352          (ii) one year.
353          [(f)] (g) A person confined under this Subsection [(6)] (11) for refusal to testify or
354     provide other information concerning any transaction, set of transactions, event, or events may
355     not be again confined under this Subsection [(6)] (11) or for criminal contempt for a
356     subsequent refusal to testify or provide other information concerning the same transaction, set
357     of transactions, event, or events.
358          [(g)] (h) Any person confined under this section may be admitted to bail or released in
359     accordance with local procedures pending the determination of an appeal taken by the person
360     from the order of the person's confinement unless the appeal affirmatively appears to be
361     frivolous or taken for delay.
362          (i) Any appeal from an order of confinement under this section shall be disposed of as
363     soon as practicable, [pursuant to] in accordance with an expedited schedule and in no event
364     more than 30 days from the filing of the appeal.
365          [(7) (a) All proceedings, except when the grand jury is deliberating or voting, shall be
366     recorded stenographically or by an electronic recording device. An unintentional failure of any
367     recording to reproduce all or any portion of a proceeding does not affect the validity of any
368     prosecution or indictment. The recording or reporter's notes or any transcript prepared from
369     them shall remain in the custody or control of the attorney for the state or the special prosecutor
370     unless otherwise ordered by the managing judge in a particular case.]
371          [(b) A grand juror, an interpreter, a court reporter, an operator of a recording device, a
372     typist who transcribes recorded testimony, an attorney for the state or special prosecutor, or any
373     person to whom disclosure is made under the provisions of this section may not disclose
374     matters occurring before the grand jury except as otherwise provided in this section. A
375     knowing violation of this provision may be punished as a contempt of court.]
376          [(c) Disclosure otherwise prohibited by this section of matters occurring before the
377     grand jury, other than its deliberations and the vote of any grand juror, may be made to:]
378          [(i) an attorney for the state or a special prosecutor for use in the performance of that
379     attorney's duty; and]
380          [(ii) government personnel, including those of state, local, and federal entities and
381     agencies, as are considered necessary by the attorney for the state or special prosecutor to assist
382     the attorney in the performance of the attorney's duty to enforce the state's criminal laws.]
383          [(d) Any person to whom matters are disclosed under this section may not utilize that
384     grand jury material for any purpose other than assisting the attorney for the state or the special
385     prosecutor in performance of that attorney's duty to enforce the state's criminal laws. An
386     attorney for the state or the special prosecutor shall promptly provide the managing judge with
387     the names of the persons to whom the disclosure has been made and shall certify that the
388     attorney has advised the person of the person's obligation of secrecy under this section.]
389          [(e) Disclosure otherwise prohibited by this section of matters occurring before the
390     grand jury may also be made when:]
391          [(i) directed by the managing judge or by any court before which the indictment that
392     involves matters occurring before the grand jury that are subject to disclosure is to be tried,
393     preliminary to or in connection with a judicial proceeding;]
394          [(ii) permitted by the managing judge at the request of the defendant, upon a showing
395     that grounds may exist for a motion to dismiss the indictment because of matters occurring
396     before the grand jury;]
397          [(iii) the disclosure is made by an attorney for the state or the special prosecutor to
398     another state or local grand jury or a federal grand jury;]
399          [(iv) permitted by the managing judge at the request of an attorney for the state or the
400     special prosecutor, upon a showing that the matters may disclose a violation of federal criminal
401     law, to an appropriate official of the federal government for the purpose of enforcing federal
402     law; or]
403          [(v) showing of special need is made and the managing judge is satisfied that
404     disclosure of the information or matters is essential for the preparation of a defense.]
405          [(f) When the matters are transcripts of testimony given by witnesses the state or
406     special prosecutor intends to call in the state's case in chief in any trial upon an indictment
407     returned by the grand jury before which the witnesses testified, the attorney for the state or the
408     special prosecutor shall, no later than 30 days before trial, provide the defendant with access to
409     the transcripts. The attorney for the state or the special prosecutor shall at the same time
410     provide the defendant with access to all exculpatory evidence presented to the grand jury prior
411     to indictment.]
412          [(g) When the managing judge orders disclosure of matters occurring before the grand
413     jury, disclosure shall be made in a manner, at a time, and under conditions the managing judge
414     directs.]
415          [(h) A petition for disclosure made under Subsection (7)(e)(ii) shall be filed with the
416     managing judge. Unless the hearing is ex parte, the petitioner shall serve written notice upon
417     the attorney for the state or the special prosecutor, the parties to the judicial proceeding if
418     disclosure is sought in connection with the proceeding, and other persons as the managing
419     judge directs. The managing judge shall afford those persons a reasonable opportunity to
420     appear and be heard.]
421          [(8) Records, orders, and subpoenas relating to grand jury proceedings shall be kept
422     under seal to the extent and so long as necessary to prevent disclosure of matters occurring
423     before the grand jury other than as provided in this section.]
424          [(9) Subject to any right to an open hearing in contempt proceedings, the managing
425     judge shall order a hearing on matters affecting a grand jury proceeding to be closed to the
426     extent necessary to prevent disclosure of matters occurring before a grand jury.]
427          Section 5. Section 77-10a-13.5 is enacted to read:
428          77-10a-13.5. Disclosure of grand jury proceedings.
429          (1) (a) All grand jury proceedings shall be recorded stenographically or by an
430     electronic recording device, except when a grand jury is deliberating or voting.
431          (b) An unintentional failure of any recording to reproduce all or any portion of a grand
432     jury proceeding does not affect the validity of any prosecution or indictment.
433          (c) A recording or reporter's notes, or any transcript prepared from the recording or
434     reporter's notes, of any grand jury proceeding shall remain in the custody or control of the
435     attorney representing the state or the special prosecutor, except as:
436          (i) ordered by the managing judge in a particular case; or
437          (ii) provided in Subsection (2).
438          (2) If a grand jury declines to indict a law enforcement officer for the alleged use of
439     deadly force, the managing judge shall order:
440          (a) except as provided in Subsection (8)(b), a transcript of the grand jury proceedings
441     to be prepared; and
442          (b) the transcript under Subsection (2)(a) be classified as a public record.
443          (3) (a) Except as otherwise provided by this section, a grand juror, an interpreter, a
444     court reporter, an operator of a recording device, a typist who transcribes recorded testimony,
445     an attorney representing the state or a special prosecutor, or any person to whom disclosure is
446     made under the provisions of this section, may not disclose matters occurring before the grand
447     jury.
448          (b) A knowing violation of Subsection (3)(a) may be punished as a contempt of court.
449          (4) Except as provided in Subsection (8)(b), grand jury proceedings may be disclosed:
450          (a) to an attorney for the state or a special prosecutor for use in the performance of that
451     attorney's duty;
452          (b) to government personnel, including state, local, and federal entities and agencies, as
453     are considered necessary by the attorney for the state or special prosecutor to assist the attorney
454     in the performance of the attorney's duty to enforce the state's criminal laws;
455          (c) when directed by the managing judge, or by any court before which the indictment
456     that involves matters occurring before the grand jury that are subject to disclosure is to be tried,
457     preliminary to or in connection with a judicial proceeding;
458          (d) when permitted by the managing judge at the request of the defendant, upon a
459     showing that grounds may exist for a motion to dismiss the indictment because of matters
460     occurring before the grand jury;
461          (e) when the disclosure is made by an attorney representing the state, or the special
462     prosecutor, to another state or local grand jury or a federal grand jury;
463          (f) when permitted by the managing judge at the request of an attorney representing the
464     state, or the special prosecutor, upon a showing that the matters may disclose a violation of
465     federal criminal law, to an appropriate official of the federal government for the purpose of
466     enforcing federal law;
467          (g) when a showing of a special need is made and the managing judge is satisfied that
468     disclosure of the information or matters is essential for the preparation of a defense;
469          (h) when the disclosure is made by an attorney representing the state, or the special
470     prosecutor, to a defendant under Subsection (6); and
471          (i) to the public in accordance with Subsection (2).
472          (5) (a) If grand jury proceedings are disclosed to a person under Subsection (4)(a) or
473     (b), the person may not utilize that grand jury material for any purpose other than assisting the
474     attorney for the state or the special prosecutor in performance of that attorney's duty to enforce
475     the state's criminal laws.
476          (b) An attorney representing the state, or the special prosecutor, shall:
477          (i) promptly provide the managing judge with the names of the persons to whom the
478     disclosure has been made under Subsection (4)(a) or (b); and
479          (ii) certify that the attorney has advised the person of the person's obligation of secrecy
480     under this section.
481          (6) (a) Except as provided in Subsection (8)(b), if a grand jury indicts a defendant, the
482     attorney representing the state, or the special prosecutor, shall no later than 30 days before trial:
483          (i) disclose the grand jury proceedings to the defendant; and
484          (ii) provide a transcript of the grand jury proceedings to the defendant.
485          (b) A disclosure under Subsection (6)(a) shall include all exculpatory evidence
486     presented to the grand jury before indictment.
487          (7) (a) A petition for disclosure made under Subsection (4)(d) shall be filed with the
488     managing judge.
489          (b) Unless the hearing is ex parte, the petitioner shall serve written notice upon the
490     attorney representing the state, or the special prosecutor, the parties to the judicial proceeding if
491     disclosure is sought in connection with the proceeding, and other persons as the managing
492     judge directs.
493          (c) The managing judge shall afford persons under Subsection (7)(b) a reasonable
494     opportunity to appear and be heard.
495          (8) (a) Except as provided in Subsection (2), if the managing judge orders the
496     disclosure of grand jury proceedings, the disclosure shall be made in a manner, at a time, and
497     under conditions that the managing judge directs.
498          (b) A disclosure of grand jury proceedings may not include any record or information
499     regarding:
500          (i) the grand jury's deliberations;
501          (ii) the vote of a grand juror;
502          (iii) the identity of a grand juror; or
503          (iv) the identity of a witness who appeared before a grand jury if:
504          (A) the disclosure is being made to the public under Subsection (2); and
505          (B) the witness submits a written request to the managing judge stating that the witness
506     wishes the witness's identity to remain confidential.
507          (9) Except otherwise provided by this section, any record, order, or subpoena relating
508     to grand jury proceedings shall be kept under seal to the extent and so long as necessary to
509     prevent disclosure of matters occurring before the grand jury.
510          (10) Subject to any right to an open hearing in contempt proceedings, the managing
511     judge shall order a hearing on matters affecting a grand jury proceeding to be closed to the
512     extent necessary to prevent disclosure of matters occurring before a grand jury.
513          Section 6. Section 77-10a-20 is amended to read:
514          77-10a-20. Expenses of grand jury -- Appropriation -- Payment by state or
515     county.
516          (1) (a) The expenses of operation of a grand jury summoned under this chapter shall be
517     paid by the Judicial Council, except under Subsection (2).
518          (b) Expenses include grand juror fees, rental of a facility, cost of transcripts, payment
519     for a court reporter or electronic recording device, secretarial services, and investigation and
520     recorder staff.
521          (c) For this purpose, an appropriation of $25,000 is made from the General Fund to the
522     Judicial Council as a separate line item in the budget of the Judicial Council.
523          (d) Any amount of this appropriation remaining at the end of the fiscal year lapses into
524     the General Fund.
525          (2) (a) When a grand jury is summoned to investigate an allegation that is determined
526     to be primarily a county-related issue, the expenses of the grand jury shall be paid by the
527     county or counties involved.
528          (b) When a grand jury is summoned upon the request of a county attorney, a district
529     attorney, or a municipal attorney, the expenses of the grand jury shall be paid by the respective
530     county or municipality.
531          [(b) The] (3) For purposes of determining payment of expenses under this section, the
532     supervising judge shall determine, before the grand jury is called, whether:
533          (a) the request to summon a grand jury is from a county attorney, a district attorney, or
534     a municipal attorney; and
535          (b) [if] the allegations involve primarily the state [or], a county or counties [for
536     purposes of determining payment of expenses under this section], or a municipality.
537          [(3)] (4) The expenses of any grand jury and the compensation for any special
538     prosecutor appointed under this chapter shall be reviewed and approved or disapproved by the
539     clerk of the court under the direction of the managing judge.